The CJEU Acting as a Lawmaker: Article 7(2) of the Brussels I bis Regulation as a New Forum Actoris for Collective Actions

This post was contributed by Burkhard Hess, who is professor at the University of Vienna. Two more contributions on the ruling of the Court of Justice in Apple Store Nederland appeared on this blog since this post was published, one by Jorg Sladic, the other by Gilles Cuniberti.

On 2 December 2025, the Grand Chamber of the Court of Justice gave its long-awaited judgment in case C-34/24, Apple Store Nederland.

The Court went for a fundamental expansion of Article 7(2) of the Brussels I bis Regulation (in the following: JR), reversing its prior case-law of the exceptional character of this special head of jurisdiction. The Grand Chamber held that in cases regarding infringements of cartel law via a platform addressed to specific Member States, each court in the Member State where the (pretended) damage occurred has (full) territorial jurisdiction to decide on the whole damage occurred in that Member State when the lawsuit is implementing a collective claim. Protagonists in consumer protection and in cartel damages will certainly welcome this outcome. However, the judgment’s line of argument does not convince me at all.

The Facts of the Case

In 2021 and 2022, two Dutch foundations brought representative actions against Apple Ireland before the District Court Amsterdam. They assert that they are acting in the interests of all users (consumers and professional users) of Apple products and services who have purchased products and services from App Store NL, an online platform. The plaintiffs pretend that Apple holds a dominant position in the market for distribution of apps which run on iOS and in the payment system for those apps (IAP) and that Apple is abusing its dominant position, within the meaning of Article 102 TFEU, by charging an  excessive commission on the sale price received.

The defendant contests the jurisdiction of the District Court Amsterdam. According to its submission, jurisdiction cannot be based on Article 7(2) JR, because the alleged harmful event cannot be located in Amsterdam since no specific event took place exclusively there. In the alternative, Apple argues that the referring court has jurisdiction only with respect to users who reside in Amsterdam or who made purchases in Amsterdam via App Store NL.

In an interlocutory decision of 16 August 2023, the Amsterdam court held, in relation to Apple Ireland, that Dutch courts have international jurisdiction on the basis of both alternatives of Article 7(2) JR: the place of the causal event and the place where the damage occurred. However, the court had difficulties in determining territorial jurisdiction. In addition, the court was uncertain about the effects of the representative actions having been brought, under Article 3:305a of the Dutch Civil Code (BW), by a legal person by virtue of its own right (that is, not as an agent, representative or assignee). Therefore, the Amsterdam court asks whether the collective nature of the claim could have a bearing on the determination of territorial jurisdiction, under Article 7(2) JR.

The Arguments of the Grand Chamber

In his Opinion of 26 March 2025, EU:C:2025:212, AG Campos Sánchez-Bordona referred to the constant jurisprudence of the Court according to which the special heads of jurisdiction are exceptions from the general rule (Art. 4 JR) and must be strictly interpreted. Moreover, the Opinion referred to the upcoming recast the Regulation and urged for judicial self-restraint in extending the scope of application of Article 7(2) JR.

The Grand Chamber (in the following: GC), however, adopts a different approach. Although the judgment starts by citing the Court’s jurisprudence on the strict interpretation of article 7(2) (para 44) and the requirement of a close relationship and proximity between the place of the damage, the GC finally deviates from its established case-law. The main arguments are found in the following paragraphs:

58. However, in the light of the Court’s interpretation of Article 7(2) of Regulation No 1215/2012, referred to in paragraph 50 of the present judgment, according to which that provision confers directly and immediately both international and territorial jurisdiction, the referring court asks which one or more of those courts with international jurisdiction would have territorial jurisdiction to hear that dispute. …

60. In the present case, it should be noted, first, that those connecting criteria cannot apply mutatis mutandis in the event, such as that at issue in the main proceedings, of the purchase of digital products, on an online platform, by an indefinite number of natural and/or legal persons who were unidentified at the time when the action was brought.

61. The difficulties in applying those connecting factors therefore require them to be adapted in order to preserve the effectiveness of Article 7(2) of Regulation No 1215/2012 and to contribute to the sound administration of justice.  …

64. As is apparent from the request for a preliminary ruling, under Netherlands law, a foundation or association which brings a representative action acts as an independent promoter of the interests of persons who, although not referred to individually, have similar interests. Those applicants thus exercise their own right, namely the right to represent and defend the collective interests of a ‘strictly defined group’ which brings together unidentified but identifiable persons, namely users, whether consumers or professionals, who have purchased apps created by developers on the App Store NL to which those persons had access by means of their Apple ID associated with the Netherlands and whose domicile or registered office is likely, for the majority of those users, to be located throughout the territory of that State.

65. That group must be determined in a sufficiently precise manner to enable interested persons to express their position on the outcome of the proceedings concerned and, where applicable, to receive compensation. In that regard, the Netherlands Government stated, at the hearing, that the outcome of a representative action for the defence of the collective interests of unidentified but identifiable persons is binding on the persons established in the Netherlands who belong to that group and who have not expressed their intention to refrain from participating in those proceedings.

66. In such circumstances, a court cannot be required, for the purpose of determining its territorial jurisdiction to hear such an action, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually at the time when that court ascertains whether it has jurisdiction; nor can it be required to identify one or some of those victims. …

68. It follows from the foregoing that, in situations such as those at issue in the main proceedings, any court having substantive jurisdiction to hear a representative action brought by an entity qualified to defend the collective interests of multiple unidentified but identifiable users will have international and territorial jurisdiction, on the basis of the place where the damage occurred, within the meaning of Article 7(2) of Regulation No 1215/2012, to hear that action in its entirety.

According to the GC, the new criterion (establishing jurisdiction) is consistent with the objectives pursued by Regulation No 1215/2012. It corresponds to “proximity”, as the damage resulted from the anticompetitive conduct throughout the whole country; and it is considered as predictable given that the defendant targeted the whole country. Finally, its permits a sound administration of justice due to the complexity of cartel damage cases (paras 70 – 74).

Assessment

If one examines the judgment’s arguments which practically overrule a standing caselaw of almost 50 years, there is not much substance to be found: The GC primarily refers to effectiveness and to the sound administration of justice (para 61). This starting point permits the Court to depart from the wording of Article 7(2) JR (“place of the damage”) and to replace it by the new criterion based on the associations’ own “right to represent and defend the interests of strictly defined group” (para 64). And the Court continues by saying: “In such circumstances, a court cannot be required … to identify, for each alleged victim taken individually, the precise place where the damage that may have been suffered occurred, since those victims are not identified individually.” No additional legal argument is provided to explain why a deviation from the clear wording of the Regulation is permissible. Here, I cannot refrain from wondering: Is this still an interpretation of a legal provision or does this (thin) line of reasoning amount to judicial law making?

In addition, the reader gets the impression that this deviation from the wording of Article 7(2) JR and from a constant jurisprudence of Court has no genuine foundation in the jurisprudence – in the operative paragraphs of the judgment, no supporting case law is quoted at all. And some of the few citations are even misleading. What remains are the basic arguments of “effectiveness” and “sound administration of justice.” However, these arguments should be used primarily by the legislator when establishing a new head of jurisdiction.

I would like to clarify here that I do not criticize the outcome of the proceedings as such, but primarily the manner in which the new head of jurisdiction has been justified, which I consider insufficient. It appears obvious that the driving idea behind the decision is the intent of the GC to facilitate collective redress in the constellation at hand by adapting the heads of jurisdiction under the Brussels Ibis Regulation to the (perceived) special needs of collective actions. This objective immediately triggers the question whether other heads of special jurisdiction should also be adapted to the (perceived) needs of collective litigation, in particular Article 7(1) JR.

An additional, more fundamental question raised by the decision concerns the internal balance of the Regulation: Until now, jurisdiction at the plaintiff’s domicile has been the exception, not the basic rule of the Brussels regime. Deviations from the basic rule are justified by specific protective needs of weaker parties. These needs are not visible here (even if the Court refers to the Appel users as “victims”); the GC facilitates private enforcement instead. It goes without saying that these aspects cannot be resolved in a judgment but must be discussed addressed through the legislative process.

There are further consequences of the judgment that need to be discussed: The new interpretation of Article 7(2) JR allows the organizer of a collective action to shop into his preferred local court, by a tailored description of a group of represented “victims”. In larger Member States such as Spain, Poland or Germany, where geographic distances are significant and court specialization varies, this reinterpretation may have considerable consequences. In this regard, the judgment amounts to an invitation to domestic forum shopping.

Finally, the judgment favours those EU Member States that do no longer require a specific designation of represented individuals in collective actions like the Netherlands (Article 3:305a of the BW) and Germany (Section 4 Verbraucherrechte-Durchsetzungsgesetz). By contrast, some Member States, like Austria, adhere to this criterion (Section 624 ZPO). The judgment does not assess the differences in the implementation of the Collective Actions Directive. Consequently, it will certainly intensify legislative competition among the Member States in this field and ultimately constrain legislative freedom of Member States in procedural law.

Final Remark

Is the Court of Justice beginning a new line of interpretation of the Brussels I bis Regulation? We will find the answer only in its future case-law. However, there are some signs of a broader approach in the judgment. The most telling one is found in the operative part which expressly uses the term “qualified entity”. This notion is a central element of the Collective Action Directive (1828/2020/EU) and describes the standing of associations to bring a collective action. In the case at hand, however, the use of this term appears misleading: the Dutch Foundations do not operate as “qualified entities” under the Collective Actions Directive. This indirect reference to non-applicable EU-instruments might be read as a sign of the willingness of the Court to further develop its case-law favouring collective redress in the context of the Brussels regime. It will certainly trigger additional preliminary references on the interpretation of the Brussels I bis Regulation.

Finally, the basic criticism remains: At the time when the ongoing recast of the Brussels I bis Regulation is being initiated and issues of collective redress are expected to be discussed, the Grand Chamber appears to pre-empt the work of the EU legislator. In case C-498/16, Schrems II, AG Bobek told the Court that creating a special regime within the Brussel I bis framework for collective redress was a matter for the EU legislator, and the Court followed that opinion. Now, the Grand Chamber effectively assumes competence to reshape the Regulation. It remains to be seen whether the EU lawmaker will endorse the Court’s case-law in the upcoming recast. A more balanced solution is still needed.